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DOJ Says Title VII Does Not Prohibit Sexual Orientation Discrimination

Published by and on October 11, 2017

Employers are in the difficult position of trying to interpret the shifting future of federal employment discrimination laws and how to adjust their policies accordingly.

In direct opposition to the EEOC’s stance, the Department of Justice takes on the hot button issue of whether or not Title VII of the Civil Rights Act covers sexual orientation discrimination. The DOJ argues to the Second Circuit Court of Appeals that sexual orientation discrimination is not and should not be covered by Title VII.

On July 26, 2017, the U.S. Department of Justice (“DOJ”) filed an amicus brief on behalf of the United States in the matter of Zarda v. Altitude Express, Inc., currently up for appeal in the U.S. Court of Appeals for the Second Circuit (“Second Circuit”). The issue in Zarda is whether Title VII of the Civil Rights Act of 1964 (“Title VII”) prohibits discrimination on the basis of sexual orientation. In Zarda, plaintiff was terminated from his employment as a skydiving instructor with Altitude Express after he told one of Altitude’s customers that he was gay. The customer subsequently complained to Altitude, and plaintiff was terminated. The DOJ’s July 26, 2017, brief established that the Unites States’ position on the issue, as the nation’s largest employer, is that federal laws do not protect against discrimination in the workplace for gay employees. The DOJ’s and the United States’ position is in stark contrast with recent U.S. Equal Employment Opportunity Commission (“EEOC”) opinions and amicus briefs, arguing that Title VII does in fact protect employees from prohibited discrimination on the basis of sexual orientation.

Prior to Zarda and 2017, it was unequivocal precedent that Title VII did not prohibit discrimination based on sexual orientation. All of that changed, however, with a series of high profile cases that challenged the long-held precedent on the grounds that Title VII does cover sexual orientation discrimination because it discrimination based on sex, gender, and gender stereotypes, which is prohibited by Title VII. While the majority of courts hearing challenges on this issue have declined to overturn precedent, the U.S. Court of Appeals for the Seventh Circuit (“Seventh Circuit”) broke from the pack in Hively v. Ivy Tech. Community College of Indiana, holding that Title VII did in fact prohibit discrimination based on sexual orientation. 853 F.3d 339 (7th Cir. 2017). Agreeing with the EEOC’s position, the Seventh Circuit reasoned that sexual orientation discrimination is the same as sex or gender discrimination, which is prohibited by Title VII. The current circuit split leaves the issue ripe for Supreme Court review.

The Second Circuit is no stranger to this current debate, having just heard Christiansen v. Omnicom Group, Inc. earlier this year. 852 F.3d 195 (2d Cir. 2017). In Christiansen, the Second Circuit held that it was bound by precedent that Title VII did not prohibit sexual orientation discrimination. Chief Judge Katzmann, however, wrote that the Second Circuit should revisit the issue “in the context of the appropriate case.” Zarda appears to be the appropriate case; the Second Circuit granted an en banc review of the case and invited briefs from parties and non-parties. The EEOC and several other non-parties entered briefs arguing that sex or gender discrimination under Title VII also covers sexual orientation discrimination. Enter the DOJ.

Under a new executive administration, the DOJ has been largely silent on this issue until now. The EEOC, on the other hand, has consistently expressed its stance in favor of Title VII coverage. This puts the two agencies at odds, which is fairly unusual. In its amicus brief, the DOJ noted that the EEOC does not speak for the federal government and that the EEOC’s argument should not be paid deference beyond its power to persuade. While the Second Circuit will review both briefs, the EEOC is formally charged with interpreting Title VII, and thus may be paid more heed.

The DOJ argues:

Title VII does not proscribe employment practices that take account of the sex of employees but do not impose differential burdens on similarly situated members of each sex. For example, employers necessarily consider the sex of their employees when maintaining and enforcing sex-specific bathrooms, but that alone does not constitute per se discriminatory treatment. Such practices do not categorically violate Title VII because they do not discriminate between members of one sex and ‘similarly situated’ members of the opposite sex.

The DOJ also argues that every Congress since 1974 has declined to amend Title VII to include sexual orientation discrimination protection despite shifts in societal and cultural attitudes. The DOJ further argues that the EEOC’s reasoning reads meaning into Title VII where no indication in the text or otherwise would indicate that sexual orientation discrimination should be covered. Essentially, the DOJ stands on precedent and counters the EEOC’s argument asserting that sex discrimination and sexual orientation discrimination are the same.

Several civil rights groups have attacked the DOJ’s brief as out of date, political, and targeting LGBT rights. Regardless of the DOJ’s purpose in filing its brief, it is the Second Circuit’s final determination that matters here.

Welter Insight

Employers are in the difficult position of trying to interpret the shifting future of federal employment discrimination laws and how to adjust their policies accordingly.

First, employers should investigate and comply with any state or local laws on topic. For example, New York and California, among other states, have laws protecting employees from sexual orientation discrimination in the workplace. Second, employers should consider including sexual orientation discrimination in their discrimination and harassment training. Finally, employers should note that only the Seventh Circuit has overturned precedent. This means that all other circuits remain unchanged in how Title VII is interpreted in relation to sexual orientation discrimination. Seventh Circuit employers, on the other hand, should seek counsel on how best to proceed and update workplace practices and policies.

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